Federal Defenders of New York Second Circuit Blog


Friday, April 22nd, 2005

Government’s Breach of Plea Agreement Leads to Resentencing

United States v. Vaval, No. 04-121-cr (April 12, 2005)(Winter, Sotomayor, and Parker)(op. by Winter). In this opinion, the Court addressed two important issues regarding guilty plea practice – the sufficiency of the allocution and the government’s obligations under a plea agreement.

Facts
Troy Vaval and his confederates made arrangements to sell firearms to a confidential informant. When the CI showed up to close the deal, Vaval and the others robbed him, stealing the buy money, his wallet and jewelry, and his car.

Vaval pled guilty to one count of robbery of federal property with a dangerous weapon, pursuant to a plea agreement. The agreement listed the relevant statutory maxima, but had “N/A” next to the line for restitution. In addition, although the government retained the right to describe to the court Vaval’s criminal conduct, it agreed to “take no position concerning” where within the applicable guideline range Vaval should …

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Wednesday, April 20th, 2005

On Mail Fraud, Property and Cheap Gas

Oscar Porcelli v. United States, Docket No. 04-2000-pr (2d Cir. April 12, 2005): Those driving automobiles in the New York area in the early 1980’s will remember Oscar Porcelli fondly as the owner of the Gaseteria chain of discount gas stations, an operation that was able to charge prices for gas significantly lower than all other outlets. The reason for that ability, it turned out, was that Porcelli simply failed to collect state sales taxes on the gas he sold while filing false sales tax returns. Although this conduct was at worst a misdemeanor under New York law, it led to Porcelli’s conviction in Federal court of one count of Rackeetering (RICO) and numerous counts of mail fraud. It also led (alas!) to the demise of the Gaseteria chain and to a whole lot of post-conviction litigation.

On direct appeal in 1989, the Circuit recognized that it “pushed the …

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Tuesday, April 19th, 2005

Some Choice Dicta about the Reasonableness Standard

United States v. Susan Godding, Docket No. 04-3643 (2d Cir. April 19, 2005) (Oakes, Kearse, Sack) (per curiam): Many of us are waiting for a definitive say from the Circuit about the meaning of Booker‘s reasonableness standard of review, beyond the generic statements in Crosby and Fleming that reasonableness is a “flexible” concept and that the Circuit will “exhibit restraint, not micromanagement” in performing this appellate function. This odd little case is, unfortunately, not that definitive statement. Nonetheless, the Circuit — while ultimately simply remanding for a Crosby determination by the district court — suggests that the sentence imposed, as well as some remarks made by the district court at the original sentencing, were unreasonable.

The opinion tells us very little about the offense or the defendant. Ms. Godding worked for a bank and, over a 5-year period, managed to embezzle over $366,000 from her employer. Although her …

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Monday, April 18th, 2005

Circuit Affirms Grant of Habeas, and Clarifies the Exhaustion Standard

Jackson v. Edwards, Docket No. 03-2805 (2d Cir. April 14, 2005) (Newman, Sack, Parker) (Op. by Parker): In this case, the Circuit affirms a grant of habeas by Judge Weinstein, and in so doing clarifies an issue regarding exhaustion. The substantive issue is fact specific — it concerns whether the defendant was entitled to a justification charge during his state trial for homicide and criminal possession of a weapon. Readers interested in that issue should consult the opinion. Suffice it to say that the Second Circuit concluded that, under the specific facts of this case, the state trial court violated the defendant’s Due Process right when it refused to give a justification charge.

The exhaustion question concerned whether the defendant’s brief to the Appellate Division “fairly presented” the federal Due Process claim — the subject of the instant habeas petition — when it “argued only that the trial …

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Saturday, April 16th, 2005

Circuit Again Vacates an Erroneous Enhancement without Conducting Reasonableness Review

United States v. Capanelli, Docket Nos. 03-1376 & 03-1439 (2d Cir. April 14, 2005) (Oakes, Jacobs & Cabranes) (Op. by Jacobs): In this opinion, the Circuit — as it did recently in United States v. Rubenstein, No. 03-1721 (see Blog, below) — vacates an erroneously imposed 5-level Guidelines enhancement; exercises its discretion to correct the error and remand for resentencing without conducting Booker‘s reasonableness review; and leaves open (again) the question of whether a sentence imposed pursuant to an erroneously calculated Guideline range could nonetheless be reasonable. Thus, the Big Question posed by Rubenstein — whether a sentence imposed upon an erroneously calculated Guidelines range could nonetheless be upheld on appeal as reasonable (and, conversely, whether a sentence imposed pursuant to a correctly calculated range could nonetheless be vacated on appeal as unreasonable) — remains unanswered.

Defendant was convicted after trial of conspiring to rob a federal …

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Thursday, April 14th, 2005

Circuit Rejects Defendant’s Effort to Assert Standing to Challenge Search of Stash House by Relying Only on Government’s Allegations

United States v. Watson, Docket No. 03-1709 (2d Cir. April 12, 2005) (Kearse, Cabranes, Korman) (Op. by Cabranes): In Watson, the Circuit affirms a district court’s denial, pre-hearing, of a defendant’s motion to suppress the fruits of an allegedly illegal search of a residence. The decision is noteworthy for practitioners because it limits a defendant’s ability to challenge a search where he is unwilling (usually for strategic reasons) to claim that he owned or occupied the place where the evidence was seized — i.e., that he had “a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128 (1978).

The defendant in this case, Roger Watson, was charged with a series of drug and gun offenses based, in part, on evidence seized pursuant to a search of a basement apartment located at 33-18 Fish Avenue in the Bronx. The defendant moved to suppress …

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Saturday, April 9th, 2005

Circuit Slams the Habeas Door: Booker Not Applicable to Cases that Became Final before January 12, 2005

Guzman v. United States, Docket No. 03-2446-pr (2d Cir. April 8, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): Disappointing though hardly surprising, the Circuit ruled today that Booker does not apply to any cases that became final before January 12, 2005, the day Booker was decided. For those who prefer the jargon, the Court concluded that the rule established in Booker — described simply as calling for an advisory Guidelines system rather than a binding one (following the Seventh Circuit’s similarly slanted characterization in McReynolds) — is (1) new (i.e., was not “dictated by” either Apprendi or Blakely); (2) procedural (rather than substantive); and (3) not within the “watershed” exception to Teague‘s bar against retroactive application of a new procedural rule to cases that became final before the rule was announced. Little new ground is trod by the opinion; it largely relies on earlier …

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Thursday, April 7th, 2005

A Post-Booker First? Circuit Vacates a Sentence as Unreasonable under Booker

United States v. Doe, Docket No. 04-1973 (2d Cir. April 5, 2005) (Wesley, Hall, and Mukasey, D.J.): In this unpublished summary order, the Circuit vacates a sentence as unreasonable under Booker. This is, to my knowledge, the first instance of a post-Booker reversal under the reasonableness standard in the Second Circuit.

Because it is merely a summary order, only a few facts can be gleaned. The defendant was convicted of two counts of making false statements on a passport application. He refused to disclose his true name throughout the proceedings, including to the Probation Office. The PSR determined that the applicable Guidelines range was 6 to 12 months, and recommended a sentence of “time served” since defendant had been in custody for nearly 18 months by the time of sentencing. Defendant had no apparent criminal history.

Judge Duffy — no great surprise — imposed a 10-year sentence …

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Wednesday, April 6th, 2005

The Concurrency Mess

Abdul-Malik v. Hawk-Sawyer, Docket No. 04-3877-pr (2d Cir. April 5, 2005) (Jacobs, Calabresi, Rakoff, D.J.) (Op. by Jacobs): As anyone who has ever had a client serving both a federal and a state term of imprisonment knows, federal law concerning how to account for concurrency between (or, god forbid, among …) these sentences is a complicated and irrational mess. In this decision, the Circuit confronts this shameful area of law and calls out to Congress to clean up the mess it created. While affirming the district court’s order dismissing the petitioner’s § 2241 petition — which challenged the Bureau of Prison’s refusal to designate his state prison facility as the place for service of his federal sentence under 18 U.S.C. § 3621(b) — the Court concludes by directing the Clerk of Court to transmit a copy of the opinion to the “Chairs and Ranking Members of the House and …

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Tuesday, April 5th, 2005

Deductive Logic Comes to the Second Circuit: The Meaning of an “Either/Or” Adjudication by a State Appellate Court for a Subsequent Habeas Petition

DeBerry v. Portuondo, Docket No. 03-2418 (2d Cir. April 4, 2005) (Walker, Oakes, and Pooler) (Opinion by Pooler) (Concurrence by Walker): In this case, the Second Circuit affirms the district court’s denial of a § 2254 petition filed by a state prisoner claiming that the prosecutor violated the rule of Batson v. Kentucky, 476 U.S. 79 (1986), in using his peremptory challenges to strike African-Americans from the jury at petitioner’s murder trial. Readers interested in the Batson issue should read the opinion for themselves. This Blog will focus on another issue touched upon by this case: What is the effect on a subsequent habeas petition when the claim advanced in the habeas was originally rejected by a state appellate court simply as “either” unpreserved for appellate review “or” without merit?

This is an issue that has been kicking around for awhile in the Circuit, and there is clearly …

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Monday, April 4th, 2005

Yet Another Supreme Court Decision on AEDPA’s One-Year Clock

Johnson v. United States, No. 03-9685 (U.S. April 4, 2005) : In a 5-4 decision, the Supreme Court by Justice Souter ruled that when a petitioner files a § 2255 petition based on a claim that his federal sentence was improperly enhanced by a state conviction that was vacated subsequent to the federal sentencing, AEDPA’s one-year statute of limitations starts running as of the date that the petitioner receives notice of the state court order vacating the predicate state conviction. However, the Court also ruled that a petitioner can take advantage of this rule only if he has sought vacatur of his state conviction with due diligence after the district court has entered judgment in the federal case. Because the petitioner Johnson waited more than 3 years after entry of judgment in the federal case to file a motion in state court to vacate the predicate convictions, and proffered …

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